UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-6028

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
JAMES A. BUTLER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-91-44)

Submitted:

May 16, 2002

Decided:

May 23, 2002

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James A. Butler, Appellant Pro Se. Gurney Wingate Grant, II, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM:
James A. Butler appeals from the district courts orders
dismissing his Fed. R. Crim. P. 41(e) motion without prejudice and
denying his motion for reconsideration.

A dismissal without

prejudice is a final order only if no amendment of the complaint

could cure the defects in the plaintiffs case. Domino Sugar Corp.
v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.
1993).

In ascertaining whether a dismissal without prejudice is

reviewable in this court, we must determine whether Butler could

save his motion by merely amending and refiling.
Because

Butlers

motion

was

dismissed

See id.

without

prejudice,

Butler could file either another Rule 41(e) motion, amended in

accordance with the district courts instructions, and/or a motion
for authorization from this court to file a successive 28 U.S.C.A.

2255

(West

Supp.

2001)

motion

attacking

his

underlying

conviction. In fact, after Butlers motion was denied, he filed an

amended Rule 41(e) motion in district court.
district courts orders are not appealable.

Therefore, the

Accordingly, we deny

premission to proceed in forma pauperis and dismiss the appeal for

lack of jurisdiction under Domino Sugar.

We dispense with oral

argument, because the facts and legal contentions are adequately

presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED